Patna High Court
Nisha Gupta vs Uday Chand Gupta on 25 August, 2023
Author: Jitendra Kumar
Bench: P. B. Bajanthri, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.5 of 2018
======================================================
Nisha Gupta Daughter of Late Mathura Prasad, wife of Sri Uday Chand
Gupta resident of Mohalla Jhing Nagar PS Bihar District Nalanda.
... ... Appellant/Defendant
Versus
Uday Chand Gupta Son of Guru Prasad Sao resident of Mohalla Jhing
Nagar PS Bihar District Nalanda.
... ... Respondent/Plaintiff
======================================================
Appearance :
For the Appellant/s : Mr. Sudish Kumar, Advocate
For the Respondent/s : Mr. Shashank Chandra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 25-08-2023
The present appeal has been filed under Section
19(1) of the Family Courts Act, 1984 impugning the judgment
dated 07.10.2017, passed by Ld. Principal Judge, Family
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Court, Nalanda at Biharsharif in Divorce Case No. 72 of 2008,
whereby the petition filed under Section 13 of the Hindu
Marriage Act on 29.07.2008, praying for decree of divorce
dissolving the marriage between the parties, has been allowed
dissolving the marriage between the parties by decree of
divorce.
2. The case of the Respondent-Plaintiff, as per the
pleadings, is that the Respondent-Plaintiff was married with
the Appellant-Defendant on 10th July, 1987 as per Hindu rites
and customs. Since the marriage, they lived together as
husband and wife and out of wedlock two sons were born. The
elder son, namely, Narendra Bharti was born on 16 th May,
1991 and the younger son, namely Aditya Kumar was born on
15th of August, 1998. It is further averred that after birth of
second son, the nature of the Appellant-Defendant-wife got
completely changed and she always used to quarrel with the
old mother of the Respondent-Plaintiff-husband. It is further
averred that she used to leave her husband's house without any
information and when the husband or his mother asked, she
used to use filthy language against husband and his mother
and she was not ready even to talk with them. She was also not
ready to prepare meal and she had left everything with his old
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mother as a result, the life of the husband became hell. It is
further averred that there was no cohabitation since 1999 till
date, hence the wife had deserted the husband continuously for
ten years. It is further averred that since 1999, the wife treated
the husband with cruelty, which is apparent from the following
facts - (i) the wife was making food after taking all material
separately and was not ready to prepare food for husband and
she always used to quarrel with him, which forced the
petitioner to live separately at upper floor of the house and the
wife is living at the ground floor having no concern with each
other. So the husband started taking food in the hotel. When
she left the house for 4 and 5 months continuously, in that
situation, the Respondent-Plaintiff was making food for
himself and for his minor sons, but when the wife came, she
forced her sons not to talk with his father and due to fear from
wife, the sons could not dare to talk with the Respondent-
Plaintiff. (ii) Although the Appellant-Plaintiff was maintaining
his two sons giving all expenditure, the wife always used to
threaten the husband to lodge criminal case against him and
always went to local police station for lodging of false case.
(iii) The Appellant-Defendant-wife sold rice, wheat and other
grains from the fields of the husband behind his back and also
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sold all the costly utensils of silver and brass worth ₹60,000/-
and also sold the entire gold and silver ornaments which was
given by the husband on the occasion of the marriage and
when Respondent-Plaintiff said anything, the wife used to
abuse him. (iv) The wife threatened the husband to kill him
with the help of anti-social elements. Hence it is impossible
for the husband to live with his wife. (v) On several occasions,
the husband fell seriously ill and admitted in Prashant clinic at
Bharaoper, but the wife never came to see him.
3. It is further averred that the husband tried his
best, but ten years have passed and the wife never cared or was
ready to live with the husband. It is also averred that the
husband has not filed any matrimonial case prior to the present
one.
4. On notice, the Appellant-Defendant had
appeared before the learned Family Court and filed her written
statement. In her written statement, she has admitted her
marriage and birth of two children out of wedlock. But she has
denied all other allegations made against her. It is claimed by
the Appellant-Defendant-wife that the Respondent-Plaintiff is
an agent of an Insurance business and he is also an active
member of RSS and BJP and high office holder. Consequently,
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he has developed intimacy with some beautiful ladies, one of
them is from Rajgir and she was frequently taken by the
husband to his house and on objection raised by her, her
husband used to beat her and on account of that relationship,
he used to come home late in night and he was indifferent
towards her and stopped taking interest in her. However,
whenever, he came to her, she welcomed him and it is wrong
to say that there is no cohabitation for last ten years. She
further averred that she does not know the name of the lady
with whom, her husband has intimacy, but she knows her face
and this divorce petition has been filed with intent to marry
her. It is also averred that the husband has deserted not only
her but even his two sons also. He does not cooperate with
them, nor meet their expenses for education and that is why
elder son was forced to drop his studies after passing
Intermediate examination. It is also claimed that whenever his
younger son asked for clothes and other essential items and
books, he used to beat him. It is also claimed that on account
of his political life as an active member of RSS and BJP, local
police station has gone in connivance with him and does not
lodge a case against him. She has also claimed that she is a
Pardanaseen lady and she does not go outside, hence there is
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no question of having any contact with any antisocial elements
and there is no question of making any attempt to kill her
husband with the help of criminals.
5. It is also averred that she is always ready to
live with him and the fact is that the husband himself has ill
design to get rid of her on account of illicit relationship with
other lady. It is also averred that her husband used to harass
her in different ways like beating and depriving her of food
and house hold items and not allowing neighbouring lady to
talk to her so that she feels lonely. It is also averred that the
husband himself shifted to other floor of the house and does
not allow the wife and sons to come to that floor where he
used to live and he frequently resides away from house and
whenever he comes, he comes late in night and till then the
wife waits for opening the door and whenever she gets late in
opening the door on account of her falling asleep, her husband
used to beat her. It is also averred that whenever she goes
outside the house for offering Puja in temple, the husband
immediately closes the door and on her return, he does not
open the door without making undue delay. It is further
claimed that the husband used to earn ₹12,000/- per month as
commission from Insurance business and ₹5,000/- per month
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from business of lending money. He has also ancestral landed
property having income of ₹2 lacs per annum from cultivation
and despite such income, he does not maintain the wife and his
sons.
6. On the basis of pleadings of the parties, the
following issues were framed:
" (i) Whether the suit is maintainable.
(ii) Whether the Plaintiff has cause of action to the file
plaint.
(iii) Whether the Defendant is legally wedded wife of the
Plaintiff.
(iv) Whether the Defendant treats the Plaintiff with
cruelty.
(v) Whether the Plaintiff is entitled to decree of divorce.
(vi) Whether the Plaintiff is entitled to any other relief."
7. The Respondent/Plaintiff has examined the
following five witnesses in support of his plaint during the
trial :
i) P. W-1- Dilip Kumar Singh on 14.07.2009
ii) P.W. -2 - Parasnath on 15.02.2010
iii) P.W.-3- Parashuram Kumar on 24.02.2010
(iv) P.W.-4 - Vinod Kumar on 15.03.2010
(v) P.W.-5- Uday Chand Gupta on 26.03.2010
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8. Dilip Kumar Singh, who has been examined as
PW-1, is acquainted with both the parties and in his
examination-in-chief filed by way of affidavit, he has deposed
that the wife of the Respondent-Plaintiff is of angry nature and
she behaves with her husband with cruelty and neglect and she
used to go mayake and other places without any information or
permission of her husband. Sometimes, she used to go for
months, leaving the little sons resulting in hardship and mental
tensions of her husband. When asked by the husband, she used
to abuse him. In his cross examination, he has deposed that the
Defendant-Wife is of angry nature. He has also deposed that
he had gone to the house of the Plaintiff/Respondent 8 years
back and he had visited his house several times. He has further
deposed that the husband is a rich man having 10-12 bigha of
land and he is also working as an insurance agent. He has
denied the suggestion that he has deposed falsely regarding the
nature of the wife of the Respondent Plaintiff.
9. Parasnath, who has been examined as P.W-2 is
acquainted with both the parties and in his examination-in-chief
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filed by way of affidavit, has reiterated the statement as made by
the Plaintiff/Respondent in his petition. In his
cross examination, he has admitted that he does not know the
name of the landlord of the house where the parties live. He is
also not in a position to tell the name of the people living in the
adjoining houses. He has denied the suggestion that the parties
live in their own house and not in a rented house. He is also not
in a position to say anything about the education of the children.
He is also not in a position to say whether the parties are
separate in mess. He has also denied the suggestion that he has
deposed falsely.
10. Parashuram Kumar- who has been examined as
PW-3, is acquainted with both the parties and he is a friend of
the Respondent-Husband and in his examination-in-chief filed
by way of affidavit, has reiterated the statement as made by the
husband in his petition for divorce. In his cross examination, he
has deposed that the husband is living separately from his
mother for about 10-12 years and his mother is living with her
other son, Shivratan Prasad Gupta. He has further deposed that
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the elder son of the parties was studying in Ranchi after passing
Matric examination, but he does not know where he is studying
at present. Both the sons are living with their mother. He has
further deposed that the Respondent/Plaintiff is presently living
away from his home. He has also deposed that he does not know
whether education of the elder son is hampered on account of
non-payment of the expense by the Plaintiff-Father. He has also
deposed that he has not seen the Defendant- Nisha Gupta selling
wheat, rice etc., but he has heard it from the Plaintiff, Uday
Chand Gupta. He has further deposed that for 5 years, Uday
Chand Gupta is not going home and there is no relationship of
husband wife between the parties.
11. Vinod Kumar, who has been examined as
P.W.-4, is also acquainted with both the parties and he is a
friend of the Plaintiff/Respondent and in examination-in-chief
filed by way of affidavit, he has reiterated the Statement as
made in the petition for divorce. In his cross examination, he
has admitted that the Plaintiff/Respondent is his friend, though
he is not a relative. He has further deposed that presently the
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Respondent/Plaintiff is living in the office of RSS and he
along with the Plaintiff/Respondent is a member of RSS. He
has further deposed that elder son, Narendra is doing a job in
Delhi as he has heard, but he has denied the suggestion that he
is not doing any job and he has been ousted by the
Plaintiff/Respondent. He has further deposed that the younger
son, Aditya is studying in Career Public School at Ranchi. But
he is not aware who maintains his expenditure but he has also
denied the suggestion that it is maintained by parental family
members of the Defendant-Wife. He has further deposed that
the Plaintiff/Respondent is an LIC agent and has monthly
income of Rs. 8-10 thousand and the Plaintiff/Respondent also
has landed property of 5-7 bighas. There is no other significant
Statement made by the witnesses in his cross examination.
12. Uday Chand Gupta, who is the
Plaintiff/Respondent himself has been examined as P.W.-5 and
in his examination-in-chief, filed by way of affidavit, he has
reiterated the Statement as made in the divorce petition. In his
cross examination, he has deposed that the wife is still living
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in his house and her elder son, Narendra is doing a job in
Delhi but he does not know in which department he is doing
job. He has also deposed that his second son, Aditya is
studying in Career Public School at Ranchi. He has also
deposed that presently, he is residing in RSS office. He has
further deposed that the wife and children do not live with
him. He has further deposed that he is an LIC agent but such
business is over. However, he has income from the old policy
by way of commission. He is on talking terms with his
brothers and mother. He has also further deposed that for about
10 years, he is not on talking terms with his wife. He has
denied the suggestion that prior to filing the divorce petition
he was on talking terms with his wife and he had a conjugal
relationship with her and only after going to the rented house
his conjugal life has ended. He has also denied the suggestion
that he is linked with a political party.
13. The Appellant/Defendant has examined the
following four witnesses in support of her defence during the
trial :
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i) D.W.-1 - Nisha Gupta on 12.05.2010
ii)D.W.-2- Suresh Prasad Gupta on 28.07.2011
iii) D.W.-3 - Ashok Kumar on 19.05.2012
iv) D.W.-4- Aditya Kumar on 24.05.2012
14. Nisha Gupta who has been examined as DW-
1, is the Defendant/Appellant herself and in her examination-
in-chief, filed by way of affidavit, she has reiterated the
Statement as made in her written statement. In her cross
examination, she has deposed that after marriage, the
relationship with her husband was good till 2006 and
thereafter, the relationship deteriorated as the husband used to
beat her. She has however deposed that she has been living
separately from her husband since 2008. She lodged a case in
the police station but under the pressure of her husband it was
not acted upon. She has not filed any harassment case in the
Court. She has been living in her sasural house. Her husband
used to come to home but where he lives is not known to her.
One son has left his studies, the second son is studying and the
expenditure of his studies is being met by the family members
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of her parental house. She doesn't know the name of the lady
with whom her husband has an intimate relationship but she
can identify her by face. She also does not know the name of
the lady of Rajgir who used to come to his house. She is living
in her Respondent-Husband's house with her children and
husband is not living with her. Whenever the Respondent-
Husband used to beat her, he got her treated and she can show
the documentary proof to prove that her hands were broken.
He has lodged the case before the police but not in the Court.
No other significant statement has been made by her during
deposition.
15. Suresh Prasad Gupta, who has been examined
as DW-2, is also acquainted with both the parties and is the
blood brother of the Defendant-Wife and brother-in-law of the
Plaintiff and in his examination-in-chief, filed by way of
affidavit he has reiterated the Statement as made in the written
statement. Despite the opportunity given to the
Plaintiff/Respondent, he has not been cross examined.
16. Ashok Kumar, who has been examined as
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D.W.-3, is also acquainted with both the parties and in his
examination-in-chief, filed by way of affidavit he has
reiterated the Statement as made in the written statement. In
his cross examination, nothing significant has been deposed by
him.
17. Aditya Kumar, aged about 15 years has been
examined as D.W.-4, who is the son of the Appellant and
Respondent and in his examination-in-chief, filed by way of
affidavit, he has reiterated the Statement as made by her
mother in her written statement. In his cross-examination, he
has deposed that prior to 2006, the relationship between his
mother and father was good and his father lives in his own
house and not in a rented house. He has also deposed that his
father does not want to live with his mother and he used to
beat her and even applied electric current to her. It is also
deposed that the expenditure of her mother is met by her
brother. This witness has not deposed any other significant
thing worth notice.
18. After hearing the rival submissions of both the
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parties and consideration of evidence on record, Ld. Family
Court allowed the petition of the Respondent/Plaintiff finding
that the Appellant/Defendant-Wife had treated the
Respondent/Plaintiff-Husband with cruelty.
19. Ld. Counsel for the Defendant/Appellant
vehemently submits that Ld. Family Court has failed to
properly appreciate the evidence on record and erroneously
found that the Appellant-Defendant-Wife had treated the
Respondent/Plaintiff-Husband with cruelty, granting decree of
divorce in favour of the Respondent/Plaintiff-Husband. He
refers to evidence on record and submits that as per the
evidence , in fact, it is the Respondent/Plaintiff-Husband, who
has treated the Appellant-Defendant-Wife with cruelty and
the Respondent/Plaintiff-Husband is not entitled to decree of
divorce against the Appellant-Defendant-Wife. A grave
injustice has been done to the Appellant-Defendant-Wife by
the Impugned Judgment. Ld. Counsel for the Respondent,
however, supports the impugned judgment as passed by Ld.
Family Court.
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20. In view of the aforesaid facts and
circumstances and submissions on behalf of both the parties,
the following two points arise for consideration of this Court :
i) Whether the Appellant-Defendant-Wife has
treated the Respondent/Plaintiff-Husband with
cruelty ?
ii) Whether the Respondent/Plaintiff-
Husband is entitled to decree of divorce against
the Appellant-Defendant-Wife ?
21. Before we proceed to discuss the points
arising for consideration, it is imperative to see case laws or
authoritative Judicial Pronouncements regarding Burden of
Proof and Standard of Proof in matrimonial cases.
22. Hon'ble Supreme Court has elaborately
discussed the nature of burden of proof in matrimonial cases
in Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan
Dastane as reported in 1975 (2) SCC 326 and law laid down
herein is still holding the field. In para 23 of the case, the
Hon'ble Apex Court has observed that, doubtless, the burden
must lie on the petitioner to establish his or her case for,
ordinarily, the burden lies on the party which affirms a fact,
not on the party which denies it. This principle accords with
commonsense as it is so much easier to prove a positive than a
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negative. The petitioner must therefore prove that the
respondent has treated him with cruelty.
23. Coming to the Standard of Proof, we find
that some misconception had arisen on account of the use of
the words "Matrimonial Offences" to describe the misconducts
of Defendants under the Hindu Marriage Act. That is why
before authoritative decision of Hon'ble Full Bench of the
Supreme Court in Dr. Narayan Ganesh Dastane Vs.
Sucheta Narayan Dastane as reported in 1975 (2) SCC 326,
there were conflicting views. As per one view, matrimonial
cases are of civil nature and hence standard of proof in such
cases would be preponderance of probabilities whereas, as per
the another view, proof beyond reasonable doubt should be
standard of proof in matrimonial cases in view of the use of
word "matrimonial offences" in Hindu Marriage Act.
However, in Dr. Narayan Ganesh Dastane case (supra),
Hon'ble Full Bench of the Supreme Court clearly held that
matrimonial cases are civil in nature and preponderance of
probabilities will be standard of proof in trial of Matrimonial
cases under the Hindu Marriage Act, and not proof beyond
reasonable doubt which is applicable in criminal trials.
Hon'ble Supreme Court, in para 24 of Dr. Narayan Ganesh
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Dastane case (supra) observed that the normal rule which
governs civil proceedings is that a fact can be said to be
established if it is proved by a preponderance of probabilities.
This is for the reason that under the Evidence Act, Section 3, a
fact is said to be proved when the court either believes it to
exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that it exists. The belief regarding the
existence of a fact may thus be founded on a balance of
probabilities. A prudent man faced with conflicting
probabilities concerning a fact-situation will act on the
supposition that the fact exists, if on weighing the various
probabilities he finds that the preponderance is in favour of the
existence of the particular fact. As a prudent man, so the court
applies this test for finding whether a fact in issue can be said
to be proved. The first step in this process is to fix the
probabilities, the second to weigh them, though the two may
often intermingle. The impossible is weeded out at the first
stage, the improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but
it is this choice which ultimately determines where the
preponderance of probabilities lies. But whether the issue is
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one of cruelty or of a loan on a pronote, the test to apply is
whether on a preponderance of probabilities the relevant fact is
proved. In civil cases this, normally, is the standard of proof to
apply for finding whether the burden of proof is discharged.
24. Ruling out application of "proof beyond
reasonable doubt" in matrimonial cases, Hon'ble Supreme
Court, in para 25 of Dr. Narayan Ganesh Dastane case
(supra) has observed that the proof beyond reasonable doubt
is proof by a higher standard which generally governs criminal
trials or trials involving inquiry into issues of a quasi-criminal
nature. A criminal trial involves the liberty of the subject
which may not be taken away on a mere preponderance of
probabilities. If the probabilities are so nicely balanced that a
reasonable, not a vascillating, mind cannot find where the
preponderance lies, a doubt arises regarding the existence of
the fact to be proved and the benefit of such reasonable doubt
goes to the accused. It is wrong to import such considerations
in trials of a purely civil nature. In para 26 of Dr. Narayan
Ganesh Dastane case (supra), Hon'ble Apex Court has
further observed that under the Hindu Marriage Act, nowhere
it is required that the petitioner must prove his case beyond
reasonable doubt. Section 23 confers on the court the power to
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pass a decree if it is "satisfied" on matters mentioned in
clauses (a) to (e) of its sub-section of (1). Considering that
proceedings under the Act are essentially of a civil nature, the
word "satisfied" must mean "satisfied on a preponderance of
probabilities" and not "satisfied beyond a reasonable doubt".
Section 23 does not alter the standard of proof in civil cases.
25. Hon'ble Supreme Court, in para 27 of Dr.
Narayan Ganesh Dastane case (supra) has further observed
that the misconception regarding the standard of proof in
matrimonial cases arises perhaps from a loose description of
the respondent's conduct in such cases as constituting a
"matrimonial offence". Acts of a spouse which are calculated
to impair the integrity of a marital union have a social
significance. To marry or not to marry and if so whom, may
well be a private affair but the freedom to break a matrimonial
tie is not. The society has a stake in the institution of marriage
and therefore the erring spouse is treated not as a mere
defaulter but as an offender. But this social philosophy, though
it may have a bearing on the need to have the clearest proof of
an allegation before it is accepted as a ground for the
dissolution of a marriage, has no bearing on the standard of
proof in matrimonial cases.
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26. Hon'ble Apex Court in para 10 of Shobha
Rani Vs. Madhukar Reddi as reported in AIR 1988 SC 121
has also observed that considering that proceedings under the
Hindu Marriage Act is essentially of a civil nature, the word
'satisfied' must mean 'satisfied on a preponderance of
probabilities' and not 'satisfied beyond a reasonable doubt'.
Section 23 of the Act does not alter the standard of proof in
civil cases.
27. Hon'ble Supreme Court in para 10 of A.
Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22
has observed that in a delicate human relationship like
matrimony, one has to see the probabilities of the case. The
concept, proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to
matters of such delicate personal relationship as those of
husband and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found out,
not merely as a matter of fact, but as the effect on the mind of
the complainant spouse because of the acts or omissions of the
other. Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct evidence,
but in the case of mental cruelty there may not at the same
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time be direct evidence. In cases where there is no direct
evidence, courts are required to probe into the mental process
and mental effect of incidents that are brought out in evidence.
It is in this view that one has to consider the evidence in
matrimonial disputes.
28. Hon'ble Kerala High Court, after referring
to A. Jayachandra case (supra), in para 19 of Mohandas
Panicker Vs. Dakshayani as reported in 2013 SCC Online
Ker 24493 has observed that the principles laid down in the
above decisions reiterate that in civil cases, preponderance of
probabilities is the standard to be adopted to prove the case.
No doubt, matrimonial cases are civil proceedings and the
Court can act upon preponderance of probabilities, especially
in adultery cases, since it is difficult to get direct evidence.
29. Now let us consider the points which are
formulated for consideration.
Point No.1
30. Before considering whether the
Respondent/Wife has committed cruelty against the Appellant
or not, it would be imperative to see what is the statutory
provisions and case laws on the subject.
31. Cruelty has been provided as one of the
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grounds for divorce under Section 13(1)(i-a) of Hindu
Marriage Act. As per the provisions, the marriage can be
dissolved by decree of divorce on a petition presented by
either of the parties, if the other party has treated the petitioner
with cruelty.
32. However, the word 'cruelty' used in Section
13(1)(i-a) of Hindu Marriage Act has not been defined under
the Hindu Marriage Act. But the word has been interpreted by
Hon'ble Supreme Court on several occasions.
33. The Hon'ble Supreme Court, in para 4 of
Sobha Rani Vs. Madhukar Reddi as reported in AIR 1988
SC 121, has observed that the word 'cruelty' has not been
defined. Indeed it could not have been defined. It has been
used in relation to human conduct or human behaviour. It is
the conduct in relation to or in respect of matrimonial duties
and obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the court
will have no problem to determine it. It is a question of fact
and degree. If it is mental the problem presents difficulty.
First, the enquiry must begin as to the nature of the cruel
treatment. Second, the impact of such treatment in the mind of
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the spouse. Whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking
into account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where the
conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on
the other spouse need not be enquired into or considered. In
such cases, the cruelty will be established if the conduct itself
is proved or admitted.
34. The Hon'ble Apex Court in para 5 of
Shobha Rani case (supra) has further observed that it will be
necessary to bear in mind that there has been marked change
in the life around us. In matrimonial duties and responsibilities
in particular, we find a sea change. They are of varying
degrees from house to house or person to person. Therefore,
when a spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the Court should not search
for standard in life. A set of facts stigmatised as cruelty in one
case may not be so in another case. The cruelty alleged may
largely depend upon the type of life the parties are accustomed
to or their economic and social conditions. It may also depend
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upon their culture and human values to which they attach
importance. The Judges and lawyers, therefore, should not
import their own notions of life. They may not go in parallel
with them. There may be a generation gap between them and
the parties. It would be better if they keep aside their customs
and manners. It would be also better if they less depend upon
precedents. Each case may be different. They deal with the
conduct of human beings who are not generally similar.
Among the human beings there is no limit to the kind of
conduct which may constitute cruelty. New type of cruelty
may crop up in any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained of.
Such is the wonderful realm of cruelty.
35. The Hon'ble Supreme Court, in para 17 of the
Shobha Rani case (supra) has also observed that the context
and the set up in which the word 'cruelty' has been used in the
section, it appears that intention is not a necessary element in
cruelty. That word has to be understood in the ordinary sense of
the term in matrimonial affairs. If the intention to harm, harass
or hurt could be inferred by the nature of the conduct or brutal
act complained of, cruelty could be easily established. But the
absence of intention should not make any difference in the case,
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if by ordinary sense in human affairs, that act complained of
could otherwise be regarded as cruelty. The relief to the party
cannot be denied on the ground that there has been no deliberate
or wilful ill-treatment.
36. The Hon'ble Apex Court in Gananath
Pattnaik Vs. State of Orissa as reported in 2002(2) SCC 619
has observed that the concept of cruelty and its effect varies
from individual to individual, also depending upon the social
and economic status to which such person belongs. "Cruelty"
for the purposes of constituting the offence under the aforesaid
section need not be physical. Even mental torture or abnormal
behaviour may amount to cruelty and harassment in a given
case.
37. The Hon'ble Supreme Court in para 10 of
A. Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC
22 has observed that cruelty which is a ground for dissolution of
marriage may be defined as wilful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily
or mental, or as to give rise to a reasonable apprehension of
such a danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social
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values, status, environment in which they live. Cruelty, includes
mental cruelty, which falls within the purview of a matrimonial
wrong. Cruelty need not be physical. If from the conduct of his
spouse same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse, about
his or her mental welfare then this conduct amounts to cruelty.
38. The Supreme Court in para 12 of A.
Jayachandra case (supra) has further observed that to
constitute cruelty, the conduct complained of should be "grave
and weighty" so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other
spouse. It must be something more serious than "ordinary wear
and tear of married life". The conduct, taking into consideration
the circumstances and background, has to be examined to reach
the conclusion whether the conduct complained of amounts to
cruelty in the matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors such as social
status of parties, their education, physical and mental
conditions, customs and traditions. It is difficult to lay down a
precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the
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type as to satisfy the conscience of the court that the relationship
between the parties had deteriorated to such an extent due to the
conduct of the other spouse that it would be impossible for them
to live together without mental agony, torture or distress, to
entitle the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable mental
agony and torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may consist of
verbal abuses and insults by using filthy and abusive language
leading to constant disturbance of mental peace of the other
party.
39. The Supreme Court in para 13 of A.
Jayachandra case (supra) has further observed that the court
dealing with the petition for divorce on the ground of cruelty
has to bear in mind that the problems before it are those of
human beings and the psychological changes in a spouse's
conduct have to be borne in mind before disposing of the
petition for divorce. However insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the court to weigh the gravity. It has to be seen
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whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon a endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day married
life, may also not amount to cruelty. Cruelty in matrimonial life
may be of unfounded variety, which can be subtle or brutal. It
may be words, gestures or by mere silence, violent or non-
violent.
40. In Harbhajan Singh Monga Vs. Amarjeet
Kaur as reported in 1985 SCC OnLine MP 83, Hon'ble
Madhya Pradesh High Court has held that even threat to
commit suicide to falsely implicate the other spouse and his/her
family members in criminal case also amounts to cruelty.
41. In Smt. Uma Wanti v. Arjan Dev as reported
in 1995 SCC OnLine P & H 56, Hon'ble Punjab and Haryan
High Court has held that even peculiar behaviour of spouse on
account of unsoundness of of mind or otherwise also amounts
to cruelty. Hon'ble Court had held that day to day behaviour of
the appellant was such as to disturb the mental peace and
harmony of the respondent which definitely amounted to legal
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cruelty. She may not be of the unsound mind, but her peculiar
ways of behaviour proved by the respondent are sufficient to
constitute that legal cruelty. The husband could not live with
peace in the company of the appellant. Peace was always
disturbed due to her peculiar ways of behaviour, and thus he
cannot be disbelieved that her behaviour was cruel to him.
42. In Mrs. Rita Nijhawan Vs. Mr. Bal Krishna
Nijhawan as reported in ILR (1973) I Delhi 944 , Hon'ble
Delhi High Court has held that denial of sexual intercourse
either on account of impotence or otherwise amounts to cruelty
to the aggrieved spouse. Hon'ble Court also observed that sex
is the foundation of marriage and without a vigorous and
harmonious sexual activity it would be impossible for any
marriage to continue for long. It cannot be denied that the sexual
activity in marriage has an extremely favourable influence on a
woman's mind and body. The result being that if she does not
get proper sexual satisfaction it will lead to depression and
frustration. It has been said that the sexual relations when happy
and harmonious vivifies woman's brain, develops her character
and trebles her vitality. It must be recognised that nothing is
more fatal to marriage than disappointments in sexual
intercourse.
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43. Hon'ble Court in Mrs. Rita Nijhawan case
(supra) further observed that the law is well settled that if either
of the party to a marriage being of healthy physical capacity
refuse to have sexual intercourse, the same would amount to
cruelty entitling the other party to a decree. In our opinion it
would not make any difference in law whether denial of sexual
intercourse is the result of sexual weakness of the respondent
disabling him from having a sexual union with the appellant, or
it is because of any wilful refusal by the respondent; this is
because in either case the result is the same namely frustration
and misery to the appellant due to denial of normal sexual life
and hence cruelty.
44. The Hon'ble Supreme Court, in para 99 of the
Samar Ghosh Vs. Jaya Ghosh as reported in (2007) 4 SCC
511, has observed, after referring to and discussing several
judgments on the point of cruelty, that human mind is
extremely complex and human behaviour is equally
complicated. Similarly, human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may
not amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his upbringing,
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level of sensitivity, educational, family and cultural background,
financial position, social status, customs, traditions, religious
beliefs, human values and their value system.
45. The Hon'ble Supreme Court has further
observed in Samar Ghosh case (supra) that there cannot be any
comprehensive definition of the concept of mental cruelty
within which all kinds of cases of mental cruelty can be
covered. The Hon'ble Court in para 100 has further observed
that the concept of mental cruelty cannot remain static; it is
bound to change with the passage of time, impact of modern
culture through print and electronic media and value system,
etc. etc. What may be mental cruelty now may not remain a
mental cruelty after a passage of time or vice versa. There can
never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The prudent
and appropriate way to adjudicate the case would be to evaluate
it on its peculiar facts and circumstances while taking
aforementioned factors in consideration.
46. It has been further observed by Hon'ble
Supreme Court in para 101 of the Samar Ghosh case (supra)
that no uniform standard can ever be laid down for guidance.
However, Hon'ble Court thought it appropriate to enumerate
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some instances of human behaviour which may be relevant in
dealing with the cases of "mental cruelty" with caution that such
instances are only illustrative and not exhaustive. The instances
enumerated by Hon'ble Apex Court are as follows :
" (i) On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering as would
not make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear that
situation is such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with
other party.
iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
iv) Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one spouse caused
by the conduct of other for a long time may lead to mental
cruelty.
v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
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viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day life would
not be adequate for grant of divorce on the ground of mental
cruelty.
x) The married life should be reviewed as a whole and
a few isolated instances over a period of years will not amount
to cruelty. The ill conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an
extent that because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.
xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the consent or
knowledge of his wife and similarly, if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the spouse
may lead to mental cruelty.
xii) Unilateral decision of refusal to have intercourse
for considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
xiii) Unilateral decision of either husband or wife
after marriage not to have child from the marriage may amount
to cruelty.
xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
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the parties. In such like situations, it may lead to mental
cruelty."
47. The Hon'ble Supreme Court, in para 18 of
Ravi Kumar Vs. Jumla Devi as reported in 2010 SCCR 265,
observed that in matrimonial relationship, cruelty would
obviously mean absence of mutual respect and understanding
between the spouses which embitters the relationship and often
leads to various outbursts of behaviour which can be termed as
cruelty. Sometime cruelty in a matrimonial relationship may
take the form of violence, sometime it may take a different
form. At times, it may be just an attitude or an approach. Silence
in some situations may amount to cruelty. Therefore, cruelty in
matrimonial behaviour defies any definition and its category can
never be closed. Whether husband is cruel to his wife or the
wife is cruel to her husband has to be ascertained and judged by
taking into account the entire facts and circumstances of the
given case and not by any pre-determined rigid formula. Cruelty
in matrimonial cases can be of infinite variety. It may be subtle
or even brutal and may be by gestures and words.
48. In para 10 of Ramchander Vs. Ananta as
reported in 2015(11)SCC 539, Hon'ble Supreme Court has
observed that cruelty for the purpose of Section 13(1)(i-a) is to
be taken as a behaviour by one spouse towards the other, which
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causes a reasonable apprehension in the mind of the latter that it
is not safe for him or her to continue the matrimonial
relationship with the other. Cruelty can be physical or mental.
49. It has further been observed by Hon'ble Apex
Court in Ramchander case (Supra) that instances of cruelty are
not to be taken in isolation. It is the cumulative effect of the
facts and circumstances emerging from the evidence on record
which should be taken into consideration to draw a fair
inference whether the plaintiff has been subjected to mental
cruelty due to conduct of the other spouse.
50. In Vinita Saxena v. Pankaj Pandit, as
reported in (2006) 3 SCC 778 Hon'ble Supreme Court has
observed in para 31 that it is settled by a catena of decisions that
mental cruelty can cause even more serious injury than the
physical harm and create in the mind of the injured appellant
such apprehension as is contemplated in the section. It is to be
determined on the whole facts of the case and the matrimonial
relations between the spouses. To amount to cruelty, there must
be such wilful treatment of the party which caused suffering in
body or mind either as an actual fact or by way of apprehension
in such a manner as to render the continued living together of
spouses harmful or injurious having regard to the circumstances
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of the case.
51. Hon'ble Supreme Court has further observed
in Para-32 of Vinita Saxena case (supra) that the word
"cruelty" has not been defined and it has been used in relation to
human conduct or human behaviour. It is the conduct in relation
to or in respect of matrimonial duties and obligations. It is a
course of conduct and one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or
unintentional. There may be cases where the conduct
complained of itself is bad enough and per se unlawful or
illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases,
the cruelty will be established if the conduct itself is proved or
admitted.
52. Hon'ble Supreme Court has further observed
in Para-36 of the Vinita Saxena case (supra) that the legal
concept of cruelty which is not defined by the statute is
generally described as conduct of such character as to have
caused danger to life, limb or health (bodily and mental) or to
give rise to reasonable apprehension of such danger. The general
rule in all questions of cruelty is that the whole matrimonial
relation must be considered, that rule is of a special value when
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the cruelty consists not of violent act but of injurious
reproaches, complaints. accusations or taunts. It may be mental
such as indifference and frigidity towards the wife, denial of a
company to her, hatred and abhorrence for the wife, or physical,
like acts of violence and abstinence from sexual intercourse
without reasonable cause. It must be proved that one partner in
the marriage, however mindless of the consequences, has
behaved in a way which the other spouse could not in the
circumstances be called upon to endure, and that misconduct has
caused injury to health or a reasonable apprehension of such
injury. There are two sides to be considered in case of cruelty.
From the appellant's side, ought this appellant to be called on to
endure the conduct? From the respondent's side, was this
conduct excusable? The court has then to decide whether the
sum total of the reprehensible conduct was cruel. That depends
on whether the cumulative conduct was sufficiently serious to
say that from a reasonable person's point of view after a
consideration of any excuse which the respondent might have in
the circumstances, the conduct is such that the petitioner ought
not be called upon to endure.
53. Hon'ble Supreme Court has further observed
in Para-37 of the Vinita Saxena case (supra) what constitutes
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the required mental cruelty for the purposes of the said
provision, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct but
really go by the intensity, gravity and stigmatic impact of it
when meted out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive
matrimonial home.
54. Hon'ble Supreme Court has further observed
in Para-38 of the Vinita Saxena case (supra) that if the taunts,
complaints and reproaches are of ordinary nature only, the court
perhaps need consider the further question as to whether their
continuance or persistence over a period of time render, what
normally would, otherwise, not be so serious an act to be so
injurious and painful as to make the spouse charged with them
genuinely and reasonably conclude that the maintenance of
matrimonial home is not possible any longer.
55. Now, coming to the case at hand, we find that
admittedly both the parties are married on 10.07.1987 and out of
the wedlock, two sons were born. The first son, Narendra
Bharati was born on 16.05.1991 and the second son, Aditya
Kumar was born on 15.08.1998. As per allegation, the nature of
the Appellant/Defendant-Wife got completely changed after the
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birth of the second son and hence, divorce petition was filed on
29.07.2008pleading following facts claimed as cruelty committed by the Appellant/Defendant-Wife against the Husband/Plaintiff :
i) The Appellant/Wife was not ready to prepare food for him and she always used to quarrel with him and also used to force him to live at the upper floor of the house and the wife was living at the ground floor having no concern with each other.
ii) The wife always used to threaten him to lodge criminal case against him.
(iii) She sold wheat, rice and other grains from his field and also sold costly utensils and ornaments behind his back.
(iv) The wife threatened to kill him with the help of anti-social elements.
(v) On several occasions, the husband fell seriously ill and admitted to Prashant Clinic at Bharawpar, but the wife never came to see him.
56. The Defendant/Wife in her written statement has denied all the allegations made in the petition and vehemently pleaded that the husband is an agent in insurance business and an active member of RSS and BJP and he consequently developed intimacy with some beautiful ladies, Patna High Court MA No.5 of 2018 dt. 25-08-2023 42/51 one of them is from Rajgir. She has further pleaded that the lady from Rajgir was frequently taken by the Husband to his house and on objection raised by the Appellant/Defendant- Wife, her husband used to beat her. It is also pleaded by her that the Husband became indifferent towards her and stopped taking interest in her. However, whenever he came to her, she welcomed him and it is wrong to say that there is no cohabitation for the last ten years. She has further pleaded that she does not know the name of the lady with whom her husband has intimacy but she knows her face. She has also claimed that the divorce petition has been filed with an intent to marry the lady from Rajgir. She has further averred that she is a pardanashi lady and she does not go outside except on occasions of offering puja in temple. She has also averred that she is always ready to live with him and the fact is that the husband wants to get rid of her on account of illicit relationship with other lady. It is also averred that the husband himself shifted to other floor of the house and did not allow the wife and sons to go to the floor where he used to live and he frequently resides away from home and whenever he comes he comes late at night.
57. Coming to the evidence adduced by the Patna High Court MA No.5 of 2018 dt. 25-08-2023 43/51 Plaintiff/Husband, who is the Respondent herein, we find that five witnesses, including himself, have been examined in support of the divorce petition.
58. P.W.-1 - Dilip Kumar Singh was examined on 14.07.2009 and we find that in his cross examination, he has deposed that he had gone to the house of the Plaintiff/Respondent eight years back and he had visited his house several times. Here, it is relevant to point out that as per the divorce petition, marriage ran into rough weather since 1999, but as per the claim that he has visited the house of the Plaintiff eight years back, it means that he has visited in the year 2001. As such, he is not in a position to say what happened prior to 2001 between the parties. Even otherwise, this witness is outsider and the Appellant Defendant-wife is a Pardanaseen lady and there appears no occasion for this witness to interact with the Appellant-Defendant and he cannot be in a position to say about the nature of the Appellant- Defendant, hence his evidence regarding nature of Appellant- Defendant and her family affairs has hardly any value.
59. P.W.-2 - Parasnath was examined on 15.02.2010. He is also an outsider and he also appears to have Patna High Court MA No.5 of 2018 dt. 25-08-2023 44/51 hardly any occasion to see the family affairs of the Appellant- Defendant-wife, who is a Pardanaseen lady. His evidence is liable to be discarded in view of his deposition during cross- examination, as per which, he does not even know whether the parties were living in their own house, nor he was knowing the names of people living in the adjacent houses of the parties to the marriage. He was also not aware whether the parties are separate in mess.
60. P.W.-3- Parashuram Kumar was examined on 24.02.2010. In his cross examination he has deposed that the mother of the Respondent/Plaintiff is living separately from him with her other son, Shivratan Prasad Gupta. He has also deposed in his cross examination that the Respondent/Plaintiff-Husband is presently living away from his home and he is not going to home for the last five years and there is no relationship of husband and wife between the parties.
61. P.W.-4 - Vinod Kumar was examined on 15.03.2010. He has deposed in his cross examination that the Respondent/Plaintiff is a member of RSS and presently he is living in the office of the RSS.
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62. The Plaintiff/Respondent has examined himself as P.W.-5. He, in his cross examination, has deposed that the wife is still living in his house along with the children. However, he does not live with them and he is residing in the RSS office. He has also deposed that for about ten years, he is not on talking terms with the wife, which means that he is not on talking terms with the wife since the year 2000 because he was examined on 26.03.2010.
63. The Appellant/Defendant-Wife has been examined as D.W.-1 and in her cross examination she has deposed that the relationship with her husband was good till 2006. She has further deposed that she is living in her matrimonial house with her children and her husband is not living with her. She has also deposed that she does not know the name of the lady with whom her husband has illicit relationship, but she can identify her by face.
64. D.W.-2 - Suresh Prasad Gupta and D.W.-3 Ashok Kumar have not made any significant statement during their depositions.
65. D.W.-4 - Aditya Kumar is very important witness, because he is the younger son of the Appellant and Patna High Court MA No.5 of 2018 dt. 25-08-2023 46/51 the Respondent. In his cross examination, he has deposed that prior to 2006, the relationship between his mother and father was good. He has further deposed that his father does not want to live with her mother and he also used to beat her and even applied electric current to her.
66. From the aforesaid evidence, it clearly transpires that as per the evidence of the Respondent-Plaintiff- husband, marriage started running into rough weather since 1999, but the divorce petition was filed in the year 2008, after a long gap of nine years. If the alleged cruelty, committed on behalf of the wife, was true, it is not explained why the Respondent-Plaintiff-husband waited for nine years to file the divorce petition on the ground of cruelty. This circumstance goes against him making his claim of cruelty allegedly committed by the Appellant-Defendant-wife non-believable. Moreover, the evidence of DW-4, who is a son of the parties, that up to 2006, the relationship between his mother and father was good and his father did not want to live with his mother and he used to beat her and even applied electric current to her, renders the case of the Plaintiff/Respondent further disbelievable.
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67. In view of the evidence that the relation between the Husband and Wife was good prior to the year 2006, the case of Husband that since 1999 the Wife/Appellant used to quarrel with him and was not ready to cook food for him falls on the ground.
68. We further find that as per evidence of both the parties that the Appellant-Defendant-wife is still living in her matrimonial house along with her children and it is the husband, who left his house and is living in the office of RSS. We also find that the wife has never refused cohabitation, it is the husband who had stopped taking interest in her and he is not making efforts for cohabitation, because he has been living separately from her. The Appellant-Defendant-wife has all along maintained that she wants to live with her husband and she always welcomed him whenever he comes home and she has never refused cohabitation. She has also deposed that it is wrong to say that before filing the divorce petition in 2008, there was no conjugal relationship between the husband and wife. It also appears that it is the husband, who does not have any concern for his wife rather than wife is not having concern for the husband. It has also come in evidence that the mother of the Respondent/Husband lives separately from him as she Patna High Court MA No.5 of 2018 dt. 25-08-2023 48/51 lives with her second son. As such, there is no question of any misconduct by the Wife/Appellant to her.
69. In regard to the allegation that wife used to threat her husband to lodge criminal case, we find that there is no cogent evidence on record and even otherwise if any offence is committed against anybody, the victim has every right to initiate criminal proceeding and as per evidence, we find that the Respondent-Plaintiff-husband used to beat his wife when she opposed his illicit relationship with other lady. Even the son of the parties who has been examined as D.W.-4, has deposed that his father used to beat his mother and even he applied electric current to her. As such, threat to exercise legal right cannot be held to be cruelty. It is also pertinent to point out that it is not a case of the husband/Plaintiff that the Defendant/Wife used to extend threat to lodge false criminal case or she has lodged any false criminal case.
70. As far as, allegation of selling wheat, rice and other grains, utensils and ornaments by the Appellant- Defendant-wife is concerned, we find that there is no such cogent evidence in support of this allegation. Even otherwise, such activity cannot be held to be cruelty to the husband. Patna High Court MA No.5 of 2018 dt. 25-08-2023 49/51 Selling grains and her ornaments cannot amount to cruelty.
71. As far as allegation that wife threatened her husband to kill with the help of anti-social elements is concerned, there is no cogent evidence on record to prove such allegation. The Appellant-Defendant-wife is a Pardanaseen lady and obviously she cannot have any contact with any anti- social elements or criminals. Even otherwise, no specific instance with reference to date and place of such threatening has been given in his evidence. As far as allegation of Respondent-Plaintiff-husband that on several occasions he fell ill and admitted in Prashant clinic at Bharaoper, but the wife never came to see him is concerned, again we find that no evidence is on record to prove such allegation. The Respondent-Plaintiff-husband has not pleaded or deposed the dates and nature of his illness and when he was admitted in hospital He has also not proved that his wife was aware of his illness and she failed to visit him.
72. As such, in totality of the evidence on record, we find that no instance has been proved by the Respondent- Plaintiff-husband, which may be construed as cruelty in the strict sense of the term as provided under Section 13 of the Patna High Court MA No.5 of 2018 dt. 25-08-2023 50/51 Hindu Marriage Act, as we have already seen what the cruelty under the Act means. The Husband/Plaintiff, who is Respondent herein, has failed to prove any misconduct on the part of the Appellant-Wife which could be considered grave and weighty giving reasonable apprehension to him of such a danger which could make it unsafe for him to continue the matrimonial life with the Appellant Wife. There may have been ordinary wear and tear in the matrimonial life of the parties, but certainly no cruelty is found to have been committed by the Appellant-Wife towards the Husband/Respondent. In fact, cruelty appears to have been committed other way round. Hence, this point is decided against the Respondent-Plaintiff and in favour of the Appellant-Defendant.
Point No.2
73. In the light of the finding in regard to point no.1, needless to say that the Respondent-Plaintiff-husband is not entitled to decree of divorce against the Appellant- Defendant-wife, because he has failed to prove the ground of cruelty to get decree of divorce against the Appellant- Defendant-wife.
Patna High Court MA No.5 of 2018 dt. 25-08-2023 51/51
74. In view of the aforesaid findings, we are of considered opinion that the impugned judgment is not sustainable in the eye of law. Hence, the present Miscellaneous Appeal is allowed setting aside the impugned judgement dated 07.10.2017, passed by Ld. Principal Judge, Family Court, Nalanda at Biharsharif in Divorce Case No. 72 of 2008. However, both the parties shall bear their own costs. Let the decree be drawn accordingly.
75. The Registrar General is directed to circulate a copy of this judgment amongst all the Presiding Officers of the Family Courts and send a copy to the Director of Bihar Judicial Academy.
(Jitendra Kumar, J)
Amrendra/- (P. B. Bajanthri, J)
AFR/NAFR AFR
CAV DATE 01.08.2023
Uploading Date 25.08.2023